R v Coss

Case [2015] QCA 33 13 March 2015

Type to search within this case.

SUPREME COURT OF QUEENSLAND

CITATION:

R v Coss [2015] QCA 33

PARTIES:

R
v
COSS, Michael Joseph
(appellant)

FILE NO/S:

CA No 227 of 2014
CA No 307 of 2012
DC No 1505 of 2013
DC No 113 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Reference under s 672A Criminal Code

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

13 March 2015

DELIVERED AT:

Brisbane

HEARING DATE:

3 March 2015

JUDGES:

Holmes, Gotterson and Philippides JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal allowed.

2.   The convictions on Counts 1 and 2 on Indictment No 113 of 2012 are quashed.

3.   The appellant be retried on Counts 1 and 2 on the said Indictment.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARDON, COMMUTATION OF PENALTY, REFERENCE ON PETITION FOR PARDON AND INQUIRY AFTER CONVICTION – REFERENCE TO COURT – where the appellant was convicted by a jury of two counts of rape – where the Crown case put to the jury at trial relied upon prerecorded evidence from affected child witnesses – where a previous appeal to this Court against conviction on other grounds was dismissed – where the trial judge failed to direct the jury in accordance with s 21AW(2) of the Evidence Act 1977 (Qld) – where the Attorney-General referred the appellant’s petition to this Court in 2014 – whether the failure to direct in accordance with s 21AW(2) resulted in a miscarriage of justice within the meaning of s 668E(1) of the Criminal Code – whether the proviso in s 668E(2) can be invoked

Crimes Act 1958 (Vic), s 568(1)
Criminal Code (Qld), s 668E(1), s 668E(2), s 672A(a)
Evidence Act 1977 (Qld), s 21AC, s 21AK(1), s 21AK(2)(b), s 21AV, s 21AV(2), s 21AW, s 21AW(1), s 21AW(1)(a), s 21AW(1)(c), s 21AW(2)

R v AAR[2014] QCA 20, distinguished
R v Carter [2014] QCA 120, distinguished
R v Coss [2013] QCA 156, considered
R v DM[2006] QCA 79, cited
R v Drake (2013) 233 A Crim R 588; [2013] QCA 222, considered
R v Hellwig [2007] 1 Qd R 17; [2006] QCA 179; considered
R v Horvath[2013] QCA 196, cited
R v Michael (2008) 181 A Crim R 409; [2008] QCA 33, cited
R v RAQ[2014] QCA 261, considered
R v TN (2005) 153 A Crim R 129; [2005] QCA 160, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, considered

COUNSEL:

M J Copley QC for the appellant
A W Moynihan QC for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: I agree with the reasons of Gotterson JA and the orders he proposes.
GOTTERSON JA: On 1 November 2012, Michael Joseph Coss was convicted of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Coss

Details

AGLC: R v Coss [2015] QCA 33
Case: [2015] QCA 33
Decision Date: 13 March 2015

CaseChat Overview and Summary

The appeal in R v Coss concerned the appellant who had been convicted by a jury of two counts of rape. The jury's decision was based on prerecorded evidence from affected child witnesses, which was presented as part of the Crown's case. The appellant's initial appeal against the conviction, on other grounds, was previously dismissed by this Court. However, the Attorney-General subsequently referred the appellant's petition for pardon to this Court in 2014, raising issues concerning the trial judge's failure to direct the jury in accordance with section 21AW(2) of the Evidence Act 1977 (Qld). The central legal issues revolved around whether this failure resulted in a miscarriage of justice, warranting the quashing of the convictions under section 668E(1) of the Criminal Code and whether the proviso in section 668E(2) could be invoked.

The Court considered the impact of the trial judge's failure to properly direct the jury regarding the use of prerecorded evidence from child witnesses. The Court found that the omission to comply with section 21AW(2) was a significant error that undermined the fairness of the trial. This procedural misstep was deemed to have the potential to affect the outcome of the trial, thereby constituting a miscarriage of justice. The Court also examined the applicability of the proviso in section 668E(2) and concluded that it was not an appropriate mechanism to address the error in this context. The failure to give the proper direction was significant enough to necessitate a retrial, as it could have influenced the jury's decision.

Given the identified errors and their potential impact on the trial's outcome, the Court allowed the appeal. Consequently, the convictions on Counts 1 and 2 on Indictment No 113 of 2012 were quashed. The Court ordered that the appellant be retried on these counts to ensure that any future trial would be conducted with all necessary procedural safeguards in place. This decision underscores the importance of adhering to legislative requirements when handling sensitive evidence in criminal trials, particularly in cases involving child witnesses.

Orders

Orders of the court

1. Appeal allowed.

2. The convictions on Counts 1 and 2 on Indictment No 113 of 2012 are quashed.

3. The appellant be retried on Counts 1 and 2 on the said Indictment.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

R v Coss [2015] QCA 33

Most Recent Citation

R v Smart [2018] SASCFC 123

Cases Citing This Decision

R v Smart [2018] SASCFC 123
Citation 1 (Para 23)

…rrable to the complainant’s evidence being given by CCTV also concerned the presence of the court companion. [6] R v Coss [2015] QCA 33 at [15]. [7] R v Drake [2013] QCA 222 at [24], (2013) 233 A Crim R 588 at 593; R v Coss [2015] QCA 33 at [14]. [8] R v Drake [2013] QCA 222, (2013) 233 A Crim R 588.…
Thompson v The Queen; The Queen v Thompson [2016] ACTCA 12
Citation 2 (Para 1)

…ses: R v HAB [2006] QCA 80; R v Hellwig (2007) 161 A Crim R 489; R v Michael (2008) 181 A Crim R 490; R v Bisht (2013) 234 A Crim R 309; and R v Coss [2015] QCA 33.…

See all citing cases →

Cases Cited

R v RAQ [2014] QCA 261
Citation 1 (Para 21)

…his line of authority are R v Horvath [22] and R v RAQ .[23] [20][2006] QCA 179; [2007] 1 Qd R 17. [21]At [38]. [22][2013] QCA 196 at [12]. [23][2014] QCA 261 at [25], [26].…
R v Carter [2014] QCA 120
Citation 2 (Para 3)

…ases where the jury had not been directly instructed in terms of s 21AW(2) with respect to the support person measure. [25][2014] QCA 20 at [31]. [26][2014] QCA 120 at [65]-[75]. Discussion…
R v AAR [2014] QCA 20
Citation 3 (Para 3)

…invoked in child witness cases where the jury had not been directly instructed in terms of s 21AW(2) with respect to the support person measure. [25][2014] QCA 20 at [31]. [26][2014] QCA 120 at [65]-[75]. Discussion…
R v Drake [2013] QCA 222
Citation 4 (Para 14)

…y or implicitly, with respect to the presence of a support person, the measure referred to in s 21AW(1)(c).[12] [12]As was also the case in R v Drake [2013] QCA 222 at [23], [24].…
R v Horvath [2013] QCA 196
Citation 5 (Para 21)

…stify.”[21] Other cases in this line of authority are R v Horvath [22] and R v RAQ .[23] [20][2006] QCA 179; [2007] 1 Qd R 17. [21]At [38]. [22][2013] QCA 196 at [12]. [23][2014] QCA 261 at [25], [26].…
R v Coss [2013] QCA 156
Citation 6 (Para 2)

…the verdicts were unreasonable and could not be supported by the evidence. That appeal was dismissed by this Court on 30 April 2013.[1] [1] R v Coss [2013] QCA 156.…
R v BCL [2013] QCA 108
Citation 7 (Para 17)

…e .[16] That provision will require the convictions to be set aside unless the proviso to it is invoked. [15]Per McMurdo J in R v DM at [70]; R v BCL [2013] QCA 108 at [10]. [16]Per Williams JA in R v DM at [3]. The proviso in s 668E(2)…
SKA v The Queen [2011] HCA 13
Citation 8 (Para 19)

…pen to the jury to conclude beyond reasonable doubt that the appellant was guilty of the offences of which he was charged.[19] [19] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 at [21]. The appellant’s submissions…
R v Michael [2008] QCA 33
Citation 9 (Para 16)

…153 A Crim R 129 at [87]; R v DM [2006] QCA 79 at [1]-[3], [26]; R v Hellwig [2006] QCA 179; [2007] 1 Qd R 17 at [12]-[14], [22]-[24]; R v Michael [2008] QCA 33; (2008) 181 A Crim R 409 at [36], [37].…
R v Hellwig [2006] QCA 179
Citation 10 (Para 16)

…Summary of Argument, paragraph 11. [14] R v TN [2005] QCA 160; (2005) 153 A Crim R 129 at [87]; R v DM [2006] QCA 79 at [1]-[3], [26]; R v Hellwig [2006] QCA 179; [2007] 1 Qd R 17 at [12]-[14], [22]-[24]; R v Michael [2008] QCA 33; (2008) 181 A Crim R 409 at [36], [37].…
R v DM [2006] QCA 79
Citation 11 (Para 16)

…ecisions of this Court.[14] [13]Respondent’s Summary of Argument, paragraph 11. [14] R v TN [2005] QCA 160; (2005) 153 A Crim R 129 at [87]; R v DM [2006] QCA 79 at [1]-[3], [26]; R v Hellwig [2006] QCA 179; [2007] 1 Qd R 17 at [12]-[14], [22]-[24]; R v Michael [2008] QCA 33; (2008) 181 A Crim R 409 at [36], [37…
Weiss v The Queen [2005] HCA 81
Citation 12

…261, considered R v TN (2005) 153 A Crim R 129; [2005] QCA 160 , cited SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, considered COUNSEL: M J Copley QC for the appellant A W Moynihan QC for the respondent SOLICITORS: Legal Aid Queensland for the appellant Direc…
R v TN [2005] QCA 160
Citation 13 (Para 16)

…s account.[13] This concession is consistent with many decisions of this Court.[14] [13]Respondent’s Summary of Argument, paragraph 11. [14] R v TN [2005] QCA 160; (2005) 153 A Crim R 129 at [87]; R v DM [2006] QCA 79 at [1]-[3], [26]; R v Hellwig [2006] QCA 179; [2007] 1 Qd R 17 at [12]-[14], [22]-[24]; R v Mich…

Legislation Cited

Crimes Act 1958 (Vic) 568(1)
2 mentions (from Para 18)
Evidence Act 1977 (Qld) 21AC
2 mentions (from Para 5)

CITATION:	R v Coss [2015] QCA 33
PARTIES:	R v COSS, Michael Joseph (appellant)
FILE NO/S:	CA No 227 of 2014 CA No 307 of 2012 DC No 1505 of 2013 DC No 113 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Reference under s 672A Criminal Code
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	13 March 2015
DELIVERED AT:	Brisbane
HEARING DATE:	3 March 2015
JUDGES:	Holmes, Gotterson and Philippides JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal allowed. 2. The convictions on Counts 1 and 2 on Indictment No 113 of 2012 are quashed. 3. The appellant be retried on Counts 1 and 2 on the said Indictment.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARDON, COMMUTATION OF PENALTY, REFERENCE ON PETITION FOR PARDON AND INQUIRY AFTER CONVICTION – REFERENCE TO COURT – where the appellant was convicted by a jury of two counts of rape – where the Crown case put to the jury at trial relied upon prerecorded evidence from affected child witnesses – where a previous appeal to this Court against conviction on other grounds was dismissed – where the trial judge failed to direct the jury in accordance with s 21AW(2) of the Evidence Act 1977 (Qld) – where the Attorney-General referred the appellant’s petition to this Court in 2014 – whether the failure to direct in accordance with s 21AW(2) resulted in a miscarriage of justice within the meaning of s 668E(1) of the Criminal Code – whether the proviso in s 668E(2) can be invoked Crimes Act 1958 (Vic), s 568(1) Criminal Code (Qld), s 668E(1), s 668E(2), s 672A(a) Evidence Act 1977 (Qld), s 21AC, s 21AK(1), s 21AK(2)(b), s 21AV, s 21AV(2), s 21AW, s 21AW(1), s 21AW(1)(a), s 21AW(1)(c), s 21AW(2) R v AAR[2014] QCA 20, distinguished R v Carter [2014] QCA 120, distinguished R v Coss [2013] QCA 156, considered R v DM[2006] QCA 79, cited R v Drake (2013) 233 A Crim R 588; [2013] QCA 222, considered R v Hellwig [2007] 1 Qd R 17; [2006] QCA 179; considered R v Horvath[2013] QCA 196, cited R v Michael (2008) 181 A Crim R 409; [2008] QCA 33, cited R v RAQ[2014] QCA 261, considered R v TN (2005) 153 A Crim R 129; [2005] QCA 160, cited SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, considered
COUNSEL:	M J Copley QC for the appellant A W Moynihan QC for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent